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November 18, 2008


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Alex Kolod

Just a thought on your disagreement about theoretical disagreement:
When Prof. Leiter says that theoretical disagreement is really either disingenuous or mistaken, I take the mistake to be one about what law is, metaphysically. So, in his positivism, one is disingenuous if he realizes/believes that the law is based on consensus and still presents a theory that suggests, or assumes, otherwise. (I say "assumes" because this would be the case when a legal scholar/philosopher put forth a new interpretive theory claiming it to be descriptive. It cannot actually be descriptive if it is new.) One is mistaken if he suggest, or assumes, a theory that has sees some other basis (not consensus) as the source of law's authority. For that reason, it seems like the disingenuousness that Prof. Shapiro is talking about (based in self interest) is actually mistake for Leiter.

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